23 ms·

5th Circuit Rules Internet Companies Have No Right to Moderate

84 points by DanAtC 4y ago

anon291 4y ago
Many corporations have their free speech rights stifled. For example, Microsoft can't publish software code that unfairly prioritizes their browser. Amazon can't publish product listings that give extra weight to their own products. We can go on. This is not the first law affecting companies ability to speak freely in the marketplace of ideas.
- akerl_ 4y ago
  What’s the argument you’re making here? It’s not really in dispute that there are exceptions to the first amendment. But they’re narrowly defined to prevent government overreach. Why do you believe that this restriction’s impact on free speech is justified?
  - junofan 4y ago
    The overbreadth doctrine? Show me the harm.
    - akerl_ 4y ago
      The harm is that a corporation would be compelled to host and display speech that they disagree with. For a fun comparison, you may want to check https://www.mtsu.edu/first-amendment/article/228/wooley-v-maynard https://www.mtsu.edu/first-amendment/article/228/wooley-v-ma... , where the Supreme Court held that the government couldn’t force someone to drive around with the state slogan on their car, because it represented compelling speech.
      - pessimizer 4y ago
        > The harm is that a corporation would be compelled to host and display speech that they disagree with. That's not a significant harm. Corporations are given certain privileges (limited-liability, very much what section 230 is an extension of), we can outline certain responsibilities in exchange. I don't want the phone company deciding what can be talked about over the phone. The technology is absolutely there for the phone company to start disconnecting conversations that it finds suspicious (for its own unaccountable, unauditable reasons) by algorithm, just like youtube taking down videos or twitter pulling down accounts.
        akerl_ 4y ago
        Free speech isn’t a privilege we give companies, it’s a right they have as collections of persons. Nor is section 230. Section 230 clarifies their behavior to the benefit of society: without confirmation in section 230 about the governments handling of responsibility for user generated content, the internet wouldn’t be able to exist (because companies would be at risk of liability for the speech of their users). The test for first amendment restrictions also isn’t “will the harm caused be significant”. Phone companies handle point to point conversations; they don’t have or need this kind of conversation because I can’t pick up my phone and publish a message under my phone companies’s banner.
        anon291 4y ago
        Okay got it. So WhatsApp can censor my phone calls but not the telephone company because Whatsapp has a WhatsApp icon on the screen. And apple of course can censor my calls on my iphone because it reflects poorly on apple for my iphone to be associated. Got it. Makes perfect sense. Thanks for the clarity.
        akerl_ 4y ago
        WhatsApp can block or delete your WhatsApp messages. And Apple could decide to not let you call numbers that start with even digits. Neither is a violation of the 1st amendment. You can disagree about whether or not that should be the case, or whether other laws (like antitrust or discrimination) should apply, but the first amendment views the government compelling speech the same way it views the government censoring speech, and the Supreme Court has consistently found that forcing an entity to display a message is compelling speech.
      - anon291 4y ago
        In California malls and other privately owned public spaces are required to allow public speech they disagree with. There was a case of a mall using the private property claims to stop union picketing and organizing, but the courts found this to be illegal. If the space is generally open to the public, you have free speech rights in California. This has stood for decades and has been law for longer in California, yet California is doing fine, and I would hardly consider California to be stifling free speech. Far from it. We make bakers write things they disagree with on cakes with their own hands. In contrast facebooks cooperation when hosting content it disagrees with is much more remote and requires no manual intervention.
- melonrusk 4y ago
  Corporations don't have rights.
  - classified 4y ago
    You seem uninformed.
  - TrueDuality 4y ago
    You should look into Citizens United. It largely turned corporations into non-voting citizens with... Rights (not full constitutional rights mind you, but rights none-the-less).
    - anon291 4y ago
      No it did not. Corporations have certain rights as collections of individuals with rights. That is all
- tzs 4y ago
  > For example, Microsoft can't publish software code that unfairly prioritizes their browser. They can publish such code with no restrictions. What they might get in trouble for is putting that code in their products where it will be executed to unfairly prioritize their browser.
rayiner 4y ago
From the opinion: > Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52. This is an example of losing cases at oral argument. Something similar happened in Citizens United, where the government's lawyer (the one defending the campaign finance law), admitted point blank that under the government's view, it could ban political books by simply barring publishers from using corporate funds to print them: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/08-205.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr... (pp. 27-28) That said, the opinion is pretty bad. It reads like one of those opinions you usually see from the other side of the aisle--heavy on vibe, light on logic.
- jquery 4y ago
  Special pleading. I have no doubt the lawyers supporting this godforsaken ruling had even worse logical conclusions they had to follow through to.
destroy-2A 4y ago
I don't think the platforms should be allowed to censor user content, if they also publish news well that's them expressing their own speech and choosing not to publish a story or not which is fine. (apart from obscene, lewd, lascivious, filthy, excessively violent, harassing). I do not like that 230 leaves this addition at the end "or otherwise objectionable" that is too steep a slope (I saw the Depp case and Ambers team found every word objectionable ;) "PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the right to pamphleteer in privately owned shopping centers)" I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate. Once a platform opens up to user content I see it as the same thing, just because the reach is bigger and it is digital should not make any difference, when we are all retired our kids will send us to sleep in a capsule plugged into the metaverse and wired up to a nutrient supply drip like the matrix - do you want to be censored in there ? anyway that's my 2 cents. I am sure people smarter than me will see a lot wrong with this and happy to hear about it.
- iamevn 4y ago
  > I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate. People can say what they want and shopping centers are absolutely free to throw people the object to out. Walmart is not a public space. The parking lot of Nordstrom is not a public space. Twitter is not a public space. Why should Walmart be forced to serve someone spouting threats to other customers and staff? Why should Twitter be forced to broadcast users spouting threats and harassment towards their other users and their staff?
  - destroy-2A 4y ago
    In case it was not clear, I agree with you that a shopping center should be able to remove people who are obscene, lewd, lascivious, filthy, excessively violent, harassing. In California at least[1] people are able to peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public. So the shopping center is not able to throw them out. I agree with this ruling and would like to see it applied Federally and to the digital platforms that allow the public to submit their own content. Like I said I am OK to remove content or people who are obscene, lewd, lascivious, filthy, excessively violent, harassing. but otherwise if you open your property or the platform to the public, you let them bring their freedom of expression also. [1]https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
deleted 4y ago
[deleted]
kukkeliskuu 4y ago
May layman's understanding of the Section 230 is that it is forcing tech companies to choose whether they want to be a Platform or not. If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content. On the other hand, if they choose not to be a Platform, they can censor, but then they are not protected from liability of the content. Tech companies really hate this, because they want to both be free from the liabilities and to censor content. That is why they muddy the public perception of the question, and employ sophists like this to muddy it.
- dragonwriter 4y ago
  > May layman's understanding of the Section 230 is that it is forcing tech companies to choose whether they want to be a Platform or not. > If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content. Your understanding is not merely wrong but 180° from what Section 230 rather specifically and explicitly exists to do. Section 230 exists exactly to eliminate that classic, pre-internet, rule distinguishing publishers from mere distributers, and to allow online information services (and individual users) to censor content without incurring the no-notice civil liability for unlawful content that would apply if the pre-Section 230 rule was applied.
  - deleted 4y ago
    [deleted]
- jffry 4y ago
  Your characterization of Section 230 is the opposite of what it does. From the Wikipedia article [1] on Section 230: > Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." [1] https://en.wikipedia.org/wiki/Section_230 https://en.wikipedia.org/wiki/Section_230
manuelabeledo 4y ago
Next step: companies will vet and completely control creators' productions. Welcome to the new internet, also known as "the old broadcasters model".
throwaway5752 4y ago
- stevespang 4y ago
zzleeper 4y ago
Let me guess. Was the 5th circuit judge appointed by Trump, with a super conservative background, from the South, vetted by the Federalist society, and pretty young so he/she will last a long time on the bench?
- zimpenfish 4y ago
  Yes (2018), yes (previously worked for Greg Abbott), no? (Virginia), yes (member since 2002), and yes (1978). https://en.wikipedia.org/wiki/Andy_Oldham https://en.wikipedia.org/wiki/Andy_Oldham
  - ojbyrne 4y ago
    The capitol of the Confederacy was in Virginia, so I’d say it’s kinda in the South.
  - rascul 4y ago
    Virginia is in the south.
  - hn_throwaway_99 4y ago
    I'm pretty baffled why you seem to think Richmond VA, which was the capital of the Confederacy, is not the South.
    - deleted 4y ago
      [deleted]
    - zimpenfish 4y ago
      Because https://en.wikipedia.org/wiki/Virginia https://en.wikipedia.org/wiki/Virginia has it halfway up the eastern seaboard and as a non-USAian, I couldn't tell you where the dividing line is with any certainty, hence the equivocation.
      - hn_throwaway_99 4y ago
        Just a heads up, citizens of the USA are called "Americans". Yes, the continents are known as North and South America, but nobody is going to think you might be Canadian or Mexican if you say you're an American.
deviantbit 4y ago
[flagged]
pxeger1 4y ago
For those not familiar with US legal stuff, the 5th Circuit is the Court of Appeals for Texas, Louisiana, and Mississippi.
- 9wzYQbTYsAIc 4y ago
  The article all but claims the judge is an “activist judge” for the Republican party.
  - defrost 4y ago
    It certainly strongly asserts the judge to have been " a Republican political operative " > Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one.
  - xhkkffbf 4y ago
    That's TechDirt for you. Masnick is highly aligned with the other side and so you can expect him to see everything through that lens.
jwie 4y ago
The endgame of this is platforms won’t get advertising spend without their ability to suppress content objectionable to advertisers.
- zaknil 4y ago
  This is only true if advertisers can threaten to shift their ads to someone who does suppress content. A court ruling binding all (or at least all sufficiently large) players in the space acts like a (legal) cartel: Customers (advertisers) don't have a choice, the conditions are the same everywhere.
- whimsicalism 4y ago
  You're wrong, advertiser spend in major social media platforms is way too valuable and also very diversified.
jleyank 4y ago
If states or regions require decisions that are economically undesirable (losing more customers than they keep) then they can decide to not do business in those regions. See an IP address from Texas, block or send them to the junk bin. People should be able to easily avoid the junk bin when dealing with websites. Or, they’ll just leave. Let the junk bin be an EPA Superfund site, which people can enter at their own risk.
- HotGarbage 4y ago
nkurz 4y ago
I haven't finished reading the decision yet (https://s3.documentcloud.org/documents/22417924/5th-circuit-netchoice-v-paxton.pdf https://s3.documentcloud.org/documents/22417924/5th-circuit-...) but it would seem to hinge on two distinct questions: 1) Should large internet communities be treated as common carriers? and 2) Should common carriers be allowed to censor/moderate at will? But then I wondered if both of these are really up for argument---maybe only the first is in dispute. Is there anyone here who feels that telephone companies (the classic example of a common carrier) should be allowed to prevent legal communication between individuals because they disagree with the political views being exchanged? If you do feel this way, could you please outline your argument?
- manicdee 4y ago
  Do you feel that telephone companies should take action when someone is using their services to harass a person, such as repeated prank calls or using SS7 signalling to capture calls that aren’t theirs?
  - deleted 4y ago
    [deleted]
  - LinuxBender 4y ago
    I believe that is a divergence from free speech when it delves into malicious intent or intent to do harm or intent to defraud. If I swat your home and someone is harmed or property is damaged as a result, I should most certainly be held culpable for any and all damages.
    - freen 4y ago
      Intent to overthrow a free and fair election? Seditious conspiracy?
      - LinuxBender 4y ago
        Sure. If it can be proven that one has intent to commit a crime then law enforcement should step in to handle the situation. This is probably not appropriate for the platform to manage as they are not the executive branch. The platform should make a best-effort to provide enough information for law enforcement to take over and use verbiage that is compatible with the legal system.
NotYourLawyer 4y ago
> In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech. The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52. Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.
- evrydayhustling 4y ago
  This quote is indeed the heart of the argument and is indeed dumb. Citation or no, calling Twitter a monopolist of the public square is absurd, when it is used by less than 1/4 of American adults and occupies only a fraction of their attention. And if it is a monopoly, the antitrust solution is to break it up, not to solve one specific complaint about it by forcing it (and it's employees) into specific performance they disagree with. Twitter's not special, it's just a useful platform that a few people would love to force into broadcast their messages.
  - cudgy 4y ago
    > calling Twitter a monopolist of the public square is absurd, when it is used by less than 1/4 of American adults and occupies only a fraction of their attention. Monopolies are not determined by simply referring to their affect upon the entire population. It is determined by their affect on consumers of that monopoly, which is a subset of the population. Therefore, it should be compared to the number of people that want to use platforms like Twitter to express opinions.
buildbot 4y ago
This ruling seems like continuation of the persecution complex of the right. I would like to point out that some of the most heavy handed moderation and censorship occurs on r/conservative, Gab, truth social, or parler, where typically dissenting results in an instant ban. I suppose that moderation is now illegal then?
- sophacles 4y ago
  Be fair - they support absolute freedom of speech. But only for those they deem worthy of existence.
buildbot 4y ago
Copied from the other thread as this seems like it is more active, This ruling seems like continuation of the persecution complex of the right. I would like to point out that some of the most heavy handed moderation and censorship occurs on r/conservative, Gab, truth social, or parler, where typically dissenting results in an instant ban. I suppose that moderation is now illegal then? One of the big things people seem to love about HN is how heavy the moderation is. Now, open season to flood it with low quality memes?
- diob 4y ago
  They'll wring themselves in knots to allow it as freedom of religion or some shit.
- darth_avocado 4y ago
  The best way to fight this is to use their own logic on them. Can’t have abortions because a fetus is a human being at conception? Great! Drive in hov lanes, claim tax dependents, apply for childcare benefits and sue if you don’t get any of these.
  - gfodor 4y ago
    Not really, people who are pro-life and take it seriously (in my experience, the vast majority of pro-lifers) would happily trade saving the lives of the unborn in exchange for treating the premise they are children seriously.
    - DangitBobby 4y ago
      Georgia recently started allowing people to claim fetuses as dependents on their tax returns [1]. 1. https://www.npr.org/2022/08/02/1115204443/georgia-fetus-pregnant-dependent-taxes https://www.npr.org/2022/08/02/1115204443/georgia-fetus-preg...
      - dpkirchner 4y ago
        A government-held database of fetuses, what could go wrong? "Our records show you had a fetus but no subsequent birth. Provide proof of a natural miscarriage or be subject to a criminal investigation."
imperio59 4y ago
This is not the end of the story. We are bound to see this and related questions end up at the supreme court in the next few years.
torpid 4y ago
It's truly baffling to me how the people that lambasted the idea of corporate personhood after Citizens United seem to now be obsessed with defending the so-called constitutional rights of said entities, of all things, to censor speech. When it comes to matters of all things censorship and restricting speech, I've never seen a steonger embrace of discrimination via privatization
- woodruffw 4y ago
  You’re pointing out a contradiction that isn’t present: the argument against compelled speech does not rest on corporate personhood. In other words: there is no investment in a corporation having rights added to it as if it were a legal person. The sole interest is that the people within the corporation do not have their rights subtracted by virtue of how they choose to organize. You can see this in how people actually talk about moderation online: it simply doesn’t matter if it’s a corporation, nonprofit, union, or individual running a service.
  - chabons 4y ago
    Honest question from someone with little context: How does this argument not also apply to Citizen's United, or corporate personhood more generally? Is the argument that compelling a corporation to do something compels the individuals within the organization (infringing on their rights), while not giving an organization a right does not infringe upon the individuals rights (which they can exercise individually instead)?
    - woodruffw 4y ago
      Yep, pretty much that. I think a good way to think about it is as a leaky abstraction: for many purposes, it makes sense (and is very convenient) to treat a corporation as a person. It saves us a lot of ink! But that corporate person is not a natural person, so it doesn't have natural rights. Instead, it has only the synthetic rights that are extended to it through law.
- denton-scratch 4y ago
freen 4y ago
You mean I can’t delete spam comments from my blog? What the hell?
- otterley 4y ago
  That's not what the decision says, nor what the legislation prohibits.
  - DangitBobby 4y ago
    > prevents large social media platforms from censoring speech based on the viewpoint of the speaker [paraphrased] All I gotta do is be clearly anti-vax in my male-enhancement supplement promotion and Wham-O! Can't censor me. But seriously. What about political spam? How will the court adjudicate claims from the platform that they are moderating spam where the user claims they are being censored?
- deviantbit 4y ago
  You mean like not baking a cake for someone because they're gay? Is it a public company?
  - iamevn 4y ago
    I don't think spammers are a protected class.
akersten 4y ago
"the first amendment doesn't say you can do this, so you can't" is such a deliberate misread of what the Constitution provides that I'm shocked this court could issue the ruling with a straight face. 1A is not prescriptive (it does not say, here are the things you are allowed to do and therefore if it's not on this list you can't do it), it's restrictive (here are the rights government can't take away). Emphasis on government in that last part. In some twisted way, the court has ignored this, and said "it's ok for the government to force a private entity to express a certain speech." Which is in direct conflict with the supposed protection granted by 1A against the government restricting your ability to choose what to express on your website!
- throwoutway 4y ago
  Interpreting corporations as “people” IMO was such a misread of the constitution that it’s led to various interpretations here. These are corporations, not people. We need to stop applying people’s rights to corporation and then we’ll return to logical deductions
  - yasp 4y ago
    How do groups of people not have the rights of people?
    - woodruffw 4y ago
      They already do, as people.
      - refurb 4y ago
        A group of people together have no right to free speech but individually they do? I don’t see how that could possibly work.
        woodruffw 4y ago
        Who said that? They continue to have rights within the group as well, and they can make whatever group decisions they would like. This doesn’t imply that we need to accept corporate personhood for all purposes.
11thEarlOfMar 4y ago
The issue is combining anonymity with a speech platform. Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion. Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets. As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business. The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)
SaintSeiya 4y ago
11thEarlOfMar 4y ago
The issue is combining anonymity with a speech platform. Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion. Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets. As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business. The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)
- RobotToaster 4y ago
  It wasn't unusual to write letters to the editor under a nom de plume.
  - TMWNN 4y ago
    Yes, but it probably wouldn't be published. At least, not in modern times. Historically letters to the editor were written anonymously or pseudonymously. They were essentially op-eds before newspapers had op-ed pages; think "Letter from a Connecticut Farmer", Silence Dogood, the Federalist Papers. During the 20th century, however, a strong tradition developed of only publishing letters written with real names. Addresses, too; the author's home town was usually included, and comic books usually printed complete addresses.
kalkin 4y ago
HN should refrain from moderating this thread in compliance with the spirit of the ruling. Would be educational probably!
- deleted 4y ago
  [deleted]
croes 4y ago
So right wing sites can be forced to bring LGBTQ+ content?
- kevingadd 4y ago
  The kind of people they want to silence the most can't afford the lawyer fees for that.
  - croes 4y ago
    Time for crowdfunding to force Breitbart to post "gay propaganda"
- vkou 4y ago
  I'm sure the current supreme court will not agree with your legal theory. I do expect it to decide that anti-lgbtq content can't be censored, though. As many other posters pointed out, 'safe spaces' like r/conservative and Gab are some of the most moderated places on the internet, and I can't see their judges changing that. It's not about consistency, it's about winning the culture war.
- SpicyLemonZest 4y ago
  I hesitate to speculate, but as the ruling notes on the second page, Twitter argued that major platforms could ban pro-LGBT speech if they want and the court found this to be ridiculous.
- manuelabeledo 4y ago
  I bet that they could argue they are not bounded by this decision, because “religious reasons”.
oth001 4y ago
Isn't this good? Aren't we all sick of Facebook/etc playing arbiter of truth, and having no recourse?
- ohCh6zos 4y ago
  I think it is more nuanced than that. Do we want a world where spam is so frequent and untouchable it blots out every conversation online? Do we want a communist club to have to host anarcho-capitalists or the reverse? I would argue both of those are undesirable, but the current state of affairs where facebook bans people for COVID misinformation that later turns out to be the truth, or when people or groups are deplatformed for what appears to be large scale collusion. Platforms shouldn't get something that approximates the benefits of common carrier while also choosing winners, but we can also all see that spam is undesirable.
gfodor 4y ago
The ruling is only in regards to very large websites with millions of MAU. In my opinion, applying laws regarding speech differently for such sites which act as 'public squares' is an important thing we, as a society, need to wrangle with. I am not sure what the answer is, but suggesting that this prevents all websites from moderation is a blatant lie. The entire point is audience size matters in how much we must regulate the nature of permissible censorship or other actions which could stifle the marketplace of ideas.
- denton-scratch 4y ago
  > sites which act as 'public squares' I hear this phrase a lot. What is a public square? Well, my living room isn't a public square. Nor is my email inbox; nor is the comment section on my blog. Actually, there are no comments on my blog, because I don't have a blog. But how many daily comments would I have to get to become a public square? I don't think there's any reasonable case to be made that a private web-service is in any sense a "public square". Faceache and Twat are private squares - like a courtyard in a gated community. If people wanted a real public square, they should have done more to prevent the sidelining of Usenet, and they should boycott the holding of "public" discussions in private places like gated communities. Incidentally, you can't usually say anything you want in a public square; several people have been arrested and cuffed in this country, for things like: - Shouting "Who elected him" on the proclamation of Charles The Turd in Edinburgh - Holding up a blank piece of paper(!) at a similar proclamation in London Basically, I can say all kinds of things here on HN that would get me arrested if I said them downtown (including if I were to pick an argument with the evangelical god-squad crews that set up in the town square with a public address system). I've lived in a few places in the USA, and in none of those places would I have felt safe expressing my opinions in the local "public square". I'd either be arrested by the cops, or beaten to a pulp by heavies, with the cops watching. The town square isn't the free-speech paradise that some people seem to claim, when they are discussing internet regulation.
  - gfodor 4y ago
    You’re getting hung up on the analogy. Whatever things like Twitter and Facebook are, they seem to be distinctly new phenomena that have a critical role to play in upholding the principles of freedom of speech that underpins things like liberal democracy, given their scale and the network effects of that scale. It’s important to recognize this for what it is and incorporate it into society intentionally to maximize the net benefits to humanity. The current approach where the marketplace of ideas seems to be tightening given the emergent behavior of these companies (and the public pressure to do so) implies to me we need a better regulatory regime or technology stack if we want to ensure liberalism continues to prosper.
MBCook 4y ago
I saw someone point out on Twitter that the way this law is written says nothing about spam. All it says is you can’t interfere with the delivery of email. Which makes sense. One of the complaints out there is companies “help” Democrats by letting their emails into the inbox while Republican emails go into spam. So it’s clear what should happen. Google/etc. should check where people live (address they already know or maybe just where most access is from). In Texas? Enjoy ALL the spam. Not just the spam folder stuff but the stuff they just outright delete because it’s so spammy. Let the poison be part of the cure. Enjoy the deluge.
iamevn 4y ago
I'm not sure I agree with the prior that blog comments, twitter/facebook posts, youtube videos, messages left behind to other players in dark souls, etc are Speech and I'm curious to find any legal opinion about this.
- iamevn 4y ago
  It seems like it comes down to what constitutes a public forum and it seems odd to me that privately owned spaces can be public forums even if they want to be considered that way. If the costs of running and maintaining a space fall up a private entity I don't understand how they can be compelled to host something they don't want.
- SpicyLemonZest 4y ago
  Under modern law, basically everything that expresses anything is considered speech under the First Amendment. Just last year (https://en.wikipedia.org/wiki/Mahanoy_Area_School_District_v._B.L https://en.wikipedia.org/wiki/Mahanoy_Area_School_District_v....), some angry Snapchat messages were given First Amendment protection.
tb_technical 4y ago
I'm gonna monologue about an only tangentially related topic. At some point, a corporate service becomes so commonplace - so ubiquitous - that it SHOULD be seen as a common carrier. Is it possible to even survive in the modern world without an email account nowadays? No? Then it should now be seen as a utility. If the best way to find out the service status of your local power utility - or what government services your local municipality offers - is on Twitter, than Twitter becomes more like a public utility to be regulated.
- DangitBobby 4y ago
  Even so, Twitter, Facebook, Email, and basically anything popular on the internet where people can freely communicate would become totally worthless if these platforms could not perform censorship. Can you imagine every popular twitter thread having 30 advertisements for 15 different male enhancement supplements?
  - tb_technical 4y ago
    As far as I'm concerned, the internet is rapidly becoming totally worthless as it is. The same arguments used to justify spam removal are also used to justify removing naughty political speech - in addition I see this as a red herring. Because email, which is a horrific spamfest, is still usable sans censorship.
    - DangitBobby 4y ago
      Some people's political views are indistinguishable from spam.
- hackerlight 4y ago
  We should stop trying to find analogies to historical precedent. Social media is an entirely new beast of the 21st century without any comparison. A new paradigm and mindset around free speech is needed, because social media and unfettered unmoderated free speech can't simultaneously coexist without collapsing our society.
HotGarbage 4y ago
If you don't want to mess with Texas: https://shitlist.hotgarba.ge/ https://shitlist.hotgarba.ge/
NHQ 4y ago
Everybody knows this is an attempt to deal with platform immunity. Take away the immunity. Make the platforms responsible for what they publish.
DangitBobby 4y ago
Unrelated: Does anyone know of a platform that has court opinions in HTML?
- deleted 4y ago
  [deleted]
user3939382 4y ago
- hackerlight 4y ago
  > I can’t help but suspect the true motivations of anyone who opposes the ruling We don't want society to collapse as unfettered conspiracy theories cause fascists to get elected and 500k deaths due to anti-vax brainwashing. That's actually our true motivation.
  - user3939382 4y ago
    Translation: I support these unelected tech oligarchs crushing the free speech of my political enemies. If you don’t support the speech of people you disagree with you don’t support free speech.
    - hackerlight 4y ago
      That's right, I don't support the American sociolegal construct of free speech in the age of social media. No sociolegal construct is sacrosanct. They're all subject to revision if facts of the world change to cause them to have more negative consequences than positive ones. Our ancestors realized that there needed to be some limits on free speech in the age of print, i.e libel law. You now accept these restrictions because you're accustomed to them - don't pretend it's high minded ideals. You have simply mentally compartmentalized libel as that speech which is OK to ban. You are no more a free speech purist than I am. We need to realize that social media has created new speech related societal failure modes that didn't exist last century. In response, we need to update our paradigm and somehow address these failure modes, because the old paradigm no longer works for the new era we live in.
      - user3939382 4y ago
        I mean this with all sincerity and respect -- at least you admit you don't believe in free speech and you're not a hypocrite, which is more than you can say for a lot of those in your school of thought. As for me, I think we have enough limits on speech and going further leads to tyranny, that muzzling those you disagree with is abominable and unenlightened. Stalin and Pol Pot would have also eagerly explained why their measures were really for the good of the public, and why new circumstances required it. Your argument boils down to, free speech of my political enemies is only acceptable when it doesn't have influence and reach.
chris_wot 4y ago
This is going to have to go to the Supreme Court now. What a waste of time.
dijonman2 4y ago
It’s a step in the right direction, but more needs to be done. We need to protect the ability to have honest discussions, even if controversial. Silencing information is draconian.
- manuelabeledo 4y ago
  > We need to protect the ability to have honest discussions, even if controversial. … Or to yell “fire!” in a packed theatre.
  - dijonman2 4y ago
    This has no association with my point.
yalogin 4y ago
This is just another example of highly unqualified political appointees giving back without regard to the constitution. It’s just going to happen more and more.
bitforger 4y ago
Suppose Twitter / FB were forced to comply with this law and remove censorship. Could they do that only for accounts that are verified as being legal US citizens and continue censoring unverified accounts? In that case I wouldn't be opposed to this, as long as it doesn't unleash a huge wave of bots.
pmontra 4y ago
So they don't have the right to moderate (which might be a good thing, see the Beautiful Blue Eyes case) but do they have the duty to do it because of some legislation?
brudgers 4y ago
Fascinating. To me, at least. If the ruling is upheld, the legal precedent of corporate free speech is reversed. If overturned, the legal philosophy of original intent is undermined. Following the benjamins, I expect the latter. To put it another way, because the ruling is against corporate free speech, it is from the left side of current political gravity.
6stringmerc 4y ago
Masnick has some suspect understandings and positions on both law and enforcement - looking at his wildly wrong interpretation of fair use with GoldiBlocks in particular - so please use caution with anything he writes.
stjohnswarts 4y ago
I think companies being allowed to carry whatever content they want is the best compromise. Companies aren't there to ensure your free speech or provide a platform. That has never been a constitutional right. There is nothing keeping the far right or far left from setting up and coming up with AltRightFace or LeftAntiface. This is the judiciary picking and choosing winners and losers that align with their personal philosophy. No one was -ever- guaranteed a platform outside a public debate forum. If you want new laws for that then get Congress to pass it. Judges are always trying to sidestep the will of the people, in particular the current SCOTUS. Maybe a further compromise would be to keep companies like cloudflare, spectrum, digital ocean, or AWS from playing favorites as they are providing the most basic of services (web hosting, web apps, etc) that make this stuff possible. Generally not general public facing. I could see a compromise where they wouldn't be allow to turn off content unless it was breaking the law (threats at individuals, treason, insurrection talk, etc)
mchusma 4y ago
I continue to be confused why social media companies want to censor, and not let users themselves censor content how they want (including with algorithms). This gets around basically all issues for all parties. Basically let me block Nazi content or whatever from my feed, but if someone wants to see it, go ahead. Honestly this would be great, as I could probably block all political posts as well, leading to a better user experience.
anotherevan 4y ago
Them: “You must censor hate speech on the internet!” Also them: “I didn’t mean you should censor my hate speech!”
- deleted 4y ago
  [deleted]

84 points by DanAtC 4y ago

Many corporations have their free speech rights stifled. For example, Microsoft can't publish software code that unfairly prioritizes their browser. Amazon can't publish product listings that give extra weight to their own products. We can go on. This is not the first law affecting companies ability to speak freely in the marketplace of ideas.

akerl_ 4y ago
What’s the argument you’re making here? It’s not really in dispute that there are exceptions to the first amendment. But they’re narrowly defined to prevent government overreach. Why do you believe that this restriction’s impact on free speech is justified?
- junofan 4y ago
  The overbreadth doctrine? Show me the harm.
  - akerl_ 4y ago
    The harm is that a corporation would be compelled to host and display speech that they disagree with. For a fun comparison, you may want to check https://www.mtsu.edu/first-amendment/article/228/wooley-v-maynard https://www.mtsu.edu/first-amendment/article/228/wooley-v-ma... , where the Supreme Court held that the government couldn’t force someone to drive around with the state slogan on their car, because it represented compelling speech.
    - pessimizer 4y ago
      > The harm is that a corporation would be compelled to host and display speech that they disagree with. That's not a significant harm. Corporations are given certain privileges (limited-liability, very much what section 230 is an extension of), we can outline certain responsibilities in exchange. I don't want the phone company deciding what can be talked about over the phone. The technology is absolutely there for the phone company to start disconnecting conversations that it finds suspicious (for its own unaccountable, unauditable reasons) by algorithm, just like youtube taking down videos or twitter pulling down accounts.
      - akerl_ 4y ago
        Free speech isn’t a privilege we give companies, it’s a right they have as collections of persons. Nor is section 230. Section 230 clarifies their behavior to the benefit of society: without confirmation in section 230 about the governments handling of responsibility for user generated content, the internet wouldn’t be able to exist (because companies would be at risk of liability for the speech of their users). The test for first amendment restrictions also isn’t “will the harm caused be significant”. Phone companies handle point to point conversations; they don’t have or need this kind of conversation because I can’t pick up my phone and publish a message under my phone companies’s banner.
        anon291 4y ago
        Okay got it. So WhatsApp can censor my phone calls but not the telephone company because Whatsapp has a WhatsApp icon on the screen. And apple of course can censor my calls on my iphone because it reflects poorly on apple for my iphone to be associated. Got it. Makes perfect sense. Thanks for the clarity.
        akerl_ 4y ago
        WhatsApp can block or delete your WhatsApp messages. And Apple could decide to not let you call numbers that start with even digits. Neither is a violation of the 1st amendment. You can disagree about whether or not that should be the case, or whether other laws (like antitrust or discrimination) should apply, but the first amendment views the government compelling speech the same way it views the government censoring speech, and the Supreme Court has consistently found that forcing an entity to display a message is compelling speech.
    - anon291 4y ago
      In California malls and other privately owned public spaces are required to allow public speech they disagree with. There was a case of a mall using the private property claims to stop union picketing and organizing, but the courts found this to be illegal. If the space is generally open to the public, you have free speech rights in California. This has stood for decades and has been law for longer in California, yet California is doing fine, and I would hardly consider California to be stifling free speech. Far from it. We make bakers write things they disagree with on cakes with their own hands. In contrast facebooks cooperation when hosting content it disagrees with is much more remote and requires no manual intervention.
melonrusk 4y ago
Corporations don't have rights.
- classified 4y ago
  You seem uninformed.
- TrueDuality 4y ago
  You should look into Citizens United. It largely turned corporations into non-voting citizens with... Rights (not full constitutional rights mind you, but rights none-the-less).
  - anon291 4y ago
    No it did not. Corporations have certain rights as collections of individuals with rights. That is all
tzs 4y ago
> For example, Microsoft can't publish software code that unfairly prioritizes their browser. They can publish such code with no restrictions. What they might get in trouble for is putting that code in their products where it will be executed to unfairly prioritize their browser.

rayiner 4y ago

From the opinion: > Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52. This is an example of losing cases at oral argument. Something similar happened in Citizens United, where the government's lawyer (the one defending the campaign finance law), admitted point blank that under the government's view, it could ban political books by simply barring publishers from using corporate funds to print them: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/08-205.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr... (pp. 27-28) That said, the opinion is pretty bad. It reads like one of those opinions you usually see from the other side of the aisle--heavy on vibe, light on logic.

jquery 4y ago
Special pleading. I have no doubt the lawyers supporting this godforsaken ruling had even worse logical conclusions they had to follow through to.

destroy-2A 4y ago

I don't think the platforms should be allowed to censor user content, if they also publish news well that's them expressing their own speech and choosing not to publish a story or not which is fine. (apart from obscene, lewd, lascivious, filthy, excessively violent, harassing). I do not like that 230 leaves this addition at the end "or otherwise objectionable" that is too steep a slope (I saw the Depp case and Ambers team found every word objectionable ;) "PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the right to pamphleteer in privately owned shopping centers)" I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate. Once a platform opens up to user content I see it as the same thing, just because the reach is bigger and it is digital should not make any difference, when we are all retired our kids will send us to sleep in a capsule plugged into the metaverse and wired up to a nutrient supply drip like the matrix - do you want to be censored in there ? anyway that's my 2 cents. I am sure people smarter than me will see a lot wrong with this and happy to hear about it.

iamevn 4y ago
> I think of the platform like a shopping center, once you open it up to the public to enter they can say whatever they want to anybody else in there and nobody can determine the subject or viewpoint they are allowed to hold or communicate. People can say what they want and shopping centers are absolutely free to throw people the object to out. Walmart is not a public space. The parking lot of Nordstrom is not a public space. Twitter is not a public space. Why should Walmart be forced to serve someone spouting threats to other customers and staff? Why should Twitter be forced to broadcast users spouting threats and harassment towards their other users and their staff?
- destroy-2A 4y ago
  In case it was not clear, I agree with you that a shopping center should be able to remove people who are obscene, lewd, lascivious, filthy, excessively violent, harassing. In California at least[1] people are able to peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public. So the shopping center is not able to throw them out. I agree with this ruling and would like to see it applied Federally and to the digital platforms that allow the public to submit their own content. Like I said I am OK to remove content or people who are obscene, lewd, lascivious, filthy, excessively violent, harassing. but otherwise if you open your property or the platform to the public, you let them bring their freedom of expression also. [1]https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...

deleted 4y ago

[deleted]

kukkeliskuu 4y ago

May layman's understanding of the Section 230 is that it is forcing tech companies to choose whether they want to be a Platform or not. If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content. On the other hand, if they choose not to be a Platform, they can censor, but then they are not protected from liability of the content. Tech companies really hate this, because they want to both be free from the liabilities and to censor content. That is why they muddy the public perception of the question, and employ sophists like this to muddy it.

dragonwriter 4y ago
> May layman's understanding of the Section 230 is that it is forcing tech companies to choose whether they want to be a Platform or not. > If they choose to be a Platform i.e. neutral to the content, then they cannot censor, but they are protected from liability of the content. Your understanding is not merely wrong but 180° from what Section 230 rather specifically and explicitly exists to do. Section 230 exists exactly to eliminate that classic, pre-internet, rule distinguishing publishers from mere distributers, and to allow online information services (and individual users) to censor content without incurring the no-notice civil liability for unlawful content that would apply if the pre-Section 230 rule was applied.
- deleted 4y ago
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jffry 4y ago
Your characterization of Section 230 is the opposite of what it does. From the Wikipedia article [1] on Section 230: > Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." [1] https://en.wikipedia.org/wiki/Section_230 https://en.wikipedia.org/wiki/Section_230

manuelabeledo 4y ago

Next step: companies will vet and completely control creators' productions. Welcome to the new internet, also known as "the old broadcasters model".

throwaway5752 4y ago

stevespang 4y ago

zzleeper 4y ago

Let me guess. Was the 5th circuit judge appointed by Trump, with a super conservative background, from the South, vetted by the Federalist society, and pretty young so he/she will last a long time on the bench?

zimpenfish 4y ago
Yes (2018), yes (previously worked for Greg Abbott), no? (Virginia), yes (member since 2002), and yes (1978). https://en.wikipedia.org/wiki/Andy_Oldham https://en.wikipedia.org/wiki/Andy_Oldham
- ojbyrne 4y ago
  The capitol of the Confederacy was in Virginia, so I’d say it’s kinda in the South.
- rascul 4y ago
  Virginia is in the south.
- hn_throwaway_99 4y ago
  I'm pretty baffled why you seem to think Richmond VA, which was the capital of the Confederacy, is not the South.
  - deleted 4y ago
    [deleted]
  - zimpenfish 4y ago
    Because https://en.wikipedia.org/wiki/Virginia https://en.wikipedia.org/wiki/Virginia has it halfway up the eastern seaboard and as a non-USAian, I couldn't tell you where the dividing line is with any certainty, hence the equivocation.
    - hn_throwaway_99 4y ago
      Just a heads up, citizens of the USA are called "Americans". Yes, the continents are known as North and South America, but nobody is going to think you might be Canadian or Mexican if you say you're an American.

deviantbit 4y ago

[flagged]

pxeger1 4y ago

For those not familiar with US legal stuff, the 5th Circuit is the Court of Appeals for Texas, Louisiana, and Mississippi.

9wzYQbTYsAIc 4y ago
The article all but claims the judge is an “activist judge” for the Republican party.
- defrost 4y ago
  It certainly strongly asserts the judge to have been " a Republican political operative " > Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one.
- xhkkffbf 4y ago
  That's TechDirt for you. Masnick is highly aligned with the other side and so you can expect him to see everything through that lens.

jwie 4y ago

The endgame of this is platforms won’t get advertising spend without their ability to suppress content objectionable to advertisers.

zaknil 4y ago
This is only true if advertisers can threaten to shift their ads to someone who does suppress content. A court ruling binding all (or at least all sufficiently large) players in the space acts like a (legal) cartel: Customers (advertisers) don't have a choice, the conditions are the same everywhere.
whimsicalism 4y ago
You're wrong, advertiser spend in major social media platforms is way too valuable and also very diversified.

jleyank 4y ago

If states or regions require decisions that are economically undesirable (losing more customers than they keep) then they can decide to not do business in those regions. See an IP address from Texas, block or send them to the junk bin. People should be able to easily avoid the junk bin when dealing with websites. Or, they’ll just leave. Let the junk bin be an EPA Superfund site, which people can enter at their own risk.

HotGarbage 4y ago

nkurz 4y ago

I haven't finished reading the decision yet (https://s3.documentcloud.org/documents/22417924/5th-circuit-netchoice-v-paxton.pdf https://s3.documentcloud.org/documents/22417924/5th-circuit-...) but it would seem to hinge on two distinct questions: 1) Should large internet communities be treated as common carriers? and 2) Should common carriers be allowed to censor/moderate at will? But then I wondered if both of these are really up for argument---maybe only the first is in dispute. Is there anyone here who feels that telephone companies (the classic example of a common carrier) should be allowed to prevent legal communication between individuals because they disagree with the political views being exchanged? If you do feel this way, could you please outline your argument?

manicdee 4y ago
Do you feel that telephone companies should take action when someone is using their services to harass a person, such as repeated prank calls or using SS7 signalling to capture calls that aren’t theirs?
- deleted 4y ago
  [deleted]
- LinuxBender 4y ago
  I believe that is a divergence from free speech when it delves into malicious intent or intent to do harm or intent to defraud. If I swat your home and someone is harmed or property is damaged as a result, I should most certainly be held culpable for any and all damages.
  - freen 4y ago
    Intent to overthrow a free and fair election? Seditious conspiracy?
    - LinuxBender 4y ago
      Sure. If it can be proven that one has intent to commit a crime then law enforcement should step in to handle the situation. This is probably not appropriate for the platform to manage as they are not the executive branch. The platform should make a best-effort to provide enough information for law enforcement to take over and use verbiage that is compatible with the legal system.

NotYourLawyer 4y ago

> In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech. The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52. Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

evrydayhustling 4y ago
This quote is indeed the heart of the argument and is indeed dumb. Citation or no, calling Twitter a monopolist of the public square is absurd, when it is used by less than 1/4 of American adults and occupies only a fraction of their attention. And if it is a monopoly, the antitrust solution is to break it up, not to solve one specific complaint about it by forcing it (and it's employees) into specific performance they disagree with. Twitter's not special, it's just a useful platform that a few people would love to force into broadcast their messages.
- cudgy 4y ago
  > calling Twitter a monopolist of the public square is absurd, when it is used by less than 1/4 of American adults and occupies only a fraction of their attention. Monopolies are not determined by simply referring to their affect upon the entire population. It is determined by their affect on consumers of that monopoly, which is a subset of the population. Therefore, it should be compared to the number of people that want to use platforms like Twitter to express opinions.

buildbot 4y ago

This ruling seems like continuation of the persecution complex of the right. I would like to point out that some of the most heavy handed moderation and censorship occurs on r/conservative, Gab, truth social, or parler, where typically dissenting results in an instant ban. I suppose that moderation is now illegal then?

sophacles 4y ago
Be fair - they support absolute freedom of speech. But only for those they deem worthy of existence.

buildbot 4y ago

Copied from the other thread as this seems like it is more active, This ruling seems like continuation of the persecution complex of the right. I would like to point out that some of the most heavy handed moderation and censorship occurs on r/conservative, Gab, truth social, or parler, where typically dissenting results in an instant ban. I suppose that moderation is now illegal then? One of the big things people seem to love about HN is how heavy the moderation is. Now, open season to flood it with low quality memes?

diob 4y ago
They'll wring themselves in knots to allow it as freedom of religion or some shit.
darth_avocado 4y ago
The best way to fight this is to use their own logic on them. Can’t have abortions because a fetus is a human being at conception? Great! Drive in hov lanes, claim tax dependents, apply for childcare benefits and sue if you don’t get any of these.
- gfodor 4y ago
  Not really, people who are pro-life and take it seriously (in my experience, the vast majority of pro-lifers) would happily trade saving the lives of the unborn in exchange for treating the premise they are children seriously.
  - DangitBobby 4y ago
    Georgia recently started allowing people to claim fetuses as dependents on their tax returns [1]. 1. https://www.npr.org/2022/08/02/1115204443/georgia-fetus-pregnant-dependent-taxes https://www.npr.org/2022/08/02/1115204443/georgia-fetus-preg...
    - dpkirchner 4y ago
      A government-held database of fetuses, what could go wrong? "Our records show you had a fetus but no subsequent birth. Provide proof of a natural miscarriage or be subject to a criminal investigation."

imperio59 4y ago

This is not the end of the story. We are bound to see this and related questions end up at the supreme court in the next few years.

torpid 4y ago

It's truly baffling to me how the people that lambasted the idea of corporate personhood after Citizens United seem to now be obsessed with defending the so-called constitutional rights of said entities, of all things, to censor speech. When it comes to matters of all things censorship and restricting speech, I've never seen a steonger embrace of discrimination via privatization

woodruffw 4y ago
You’re pointing out a contradiction that isn’t present: the argument against compelled speech does not rest on corporate personhood. In other words: there is no investment in a corporation having rights added to it as if it were a legal person. The sole interest is that the people within the corporation do not have their rights subtracted by virtue of how they choose to organize. You can see this in how people actually talk about moderation online: it simply doesn’t matter if it’s a corporation, nonprofit, union, or individual running a service.
- chabons 4y ago
  Honest question from someone with little context: How does this argument not also apply to Citizen's United, or corporate personhood more generally? Is the argument that compelling a corporation to do something compels the individuals within the organization (infringing on their rights), while not giving an organization a right does not infringe upon the individuals rights (which they can exercise individually instead)?
  - woodruffw 4y ago
    Yep, pretty much that. I think a good way to think about it is as a leaky abstraction: for many purposes, it makes sense (and is very convenient) to treat a corporation as a person. It saves us a lot of ink! But that corporate person is not a natural person, so it doesn't have natural rights. Instead, it has only the synthetic rights that are extended to it through law.
denton-scratch 4y ago

freen 4y ago

You mean I can’t delete spam comments from my blog? What the hell?

otterley 4y ago
That's not what the decision says, nor what the legislation prohibits.
- DangitBobby 4y ago
  > prevents large social media platforms from censoring speech based on the viewpoint of the speaker [paraphrased] All I gotta do is be clearly anti-vax in my male-enhancement supplement promotion and Wham-O! Can't censor me. But seriously. What about political spam? How will the court adjudicate claims from the platform that they are moderating spam where the user claims they are being censored?
deviantbit 4y ago
You mean like not baking a cake for someone because they're gay? Is it a public company?
- iamevn 4y ago
  I don't think spammers are a protected class.

akersten 4y ago

"the first amendment doesn't say you can do this, so you can't" is such a deliberate misread of what the Constitution provides that I'm shocked this court could issue the ruling with a straight face. 1A is not prescriptive (it does not say, here are the things you are allowed to do and therefore if it's not on this list you can't do it), it's restrictive (here are the rights government can't take away). Emphasis on government in that last part. In some twisted way, the court has ignored this, and said "it's ok for the government to force a private entity to express a certain speech." Which is in direct conflict with the supposed protection granted by 1A against the government restricting your ability to choose what to express on your website!

throwoutway 4y ago
Interpreting corporations as “people” IMO was such a misread of the constitution that it’s led to various interpretations here. These are corporations, not people. We need to stop applying people’s rights to corporation and then we’ll return to logical deductions
- yasp 4y ago
  How do groups of people not have the rights of people?
  - woodruffw 4y ago
    They already do, as people.
    - refurb 4y ago
      A group of people together have no right to free speech but individually they do? I don’t see how that could possibly work.
      - woodruffw 4y ago
        Who said that? They continue to have rights within the group as well, and they can make whatever group decisions they would like. This doesn’t imply that we need to accept corporate personhood for all purposes.

11thEarlOfMar 4y ago

The issue is combining anonymity with a speech platform. Newspapers published (publish?) Letters to the Editor. Readers sent in their comments on stories the paper had published. The editor would pick and choose which to publish (editorial discretion). But, a) they did not edit the writer's content, and b) the writer's name and town were published along with their opinion. Once you've made the comments anonymous, you eliminate the restraint that your name confers on your public expression. Should an editor publish a pro-Nazi letter from a reader along with their name, the subscribers all then know that so-and-so is pro-Nazi, and so-and-so will have real-life social consequences, not to mention a new folder in FBI filing cabinets. As long as a commercial platform allows anonymous content contribution, they need to be able to censor what is published. Otherwise, they likely cannot build a business. The place to go with regulation is requiring the platform to be transparent about their censorship rules, and provide means to adjudicate their rulings. In general, corporations are required to develop internal operating policies with fairly wide latitude, and as long as they publish and abide by those policies, they stay out of trouble. This is done in accounting & Finance, HR, and other areas. This approach can be applied to user posts as well. Adjudication should entail whether the reason for censoring holds up to the then-published site rules. Platforms need to publish their rules in entirety, and when a post is squelched or blocked, respond to the poster with chapter and verse of the rules that were violated. This happens to a large extent now, though many find the application to be inconsistent, hence the need for adjudication. Kind of like how HN does it :-)

SaintSeiya 4y ago

11thEarlOfMar 4y ago

RobotToaster 4y ago
It wasn't unusual to write letters to the editor under a nom de plume.
- TMWNN 4y ago
  Yes, but it probably wouldn't be published. At least, not in modern times. Historically letters to the editor were written anonymously or pseudonymously. They were essentially op-eds before newspapers had op-ed pages; think "Letter from a Connecticut Farmer", Silence Dogood, the Federalist Papers. During the 20th century, however, a strong tradition developed of only publishing letters written with real names. Addresses, too; the author's home town was usually included, and comic books usually printed complete addresses.

kalkin 4y ago

HN should refrain from moderating this thread in compliance with the spirit of the ruling. Would be educational probably!

deleted 4y ago
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croes 4y ago

So right wing sites can be forced to bring LGBTQ+ content?

kevingadd 4y ago
The kind of people they want to silence the most can't afford the lawyer fees for that.
- croes 4y ago
  Time for crowdfunding to force Breitbart to post "gay propaganda"
vkou 4y ago
I'm sure the current supreme court will not agree with your legal theory. I do expect it to decide that anti-lgbtq content can't be censored, though. As many other posters pointed out, 'safe spaces' like r/conservative and Gab are some of the most moderated places on the internet, and I can't see their judges changing that. It's not about consistency, it's about winning the culture war.
SpicyLemonZest 4y ago
I hesitate to speculate, but as the ruling notes on the second page, Twitter argued that major platforms could ban pro-LGBT speech if they want and the court found this to be ridiculous.
manuelabeledo 4y ago
I bet that they could argue they are not bounded by this decision, because “religious reasons”.

oth001 4y ago

Isn't this good? Aren't we all sick of Facebook/etc playing arbiter of truth, and having no recourse?

ohCh6zos 4y ago
I think it is more nuanced than that. Do we want a world where spam is so frequent and untouchable it blots out every conversation online? Do we want a communist club to have to host anarcho-capitalists or the reverse? I would argue both of those are undesirable, but the current state of affairs where facebook bans people for COVID misinformation that later turns out to be the truth, or when people or groups are deplatformed for what appears to be large scale collusion. Platforms shouldn't get something that approximates the benefits of common carrier while also choosing winners, but we can also all see that spam is undesirable.

gfodor 4y ago

The ruling is only in regards to very large websites with millions of MAU. In my opinion, applying laws regarding speech differently for such sites which act as 'public squares' is an important thing we, as a society, need to wrangle with. I am not sure what the answer is, but suggesting that this prevents all websites from moderation is a blatant lie. The entire point is audience size matters in how much we must regulate the nature of permissible censorship or other actions which could stifle the marketplace of ideas.

denton-scratch 4y ago
> sites which act as 'public squares' I hear this phrase a lot. What is a public square? Well, my living room isn't a public square. Nor is my email inbox; nor is the comment section on my blog. Actually, there are no comments on my blog, because I don't have a blog. But how many daily comments would I have to get to become a public square? I don't think there's any reasonable case to be made that a private web-service is in any sense a "public square". Faceache and Twat are private squares - like a courtyard in a gated community. If people wanted a real public square, they should have done more to prevent the sidelining of Usenet, and they should boycott the holding of "public" discussions in private places like gated communities. Incidentally, you can't usually say anything you want in a public square; several people have been arrested and cuffed in this country, for things like: - Shouting "Who elected him" on the proclamation of Charles The Turd in Edinburgh - Holding up a blank piece of paper(!) at a similar proclamation in London Basically, I can say all kinds of things here on HN that would get me arrested if I said them downtown (including if I were to pick an argument with the evangelical god-squad crews that set up in the town square with a public address system). I've lived in a few places in the USA, and in none of those places would I have felt safe expressing my opinions in the local "public square". I'd either be arrested by the cops, or beaten to a pulp by heavies, with the cops watching. The town square isn't the free-speech paradise that some people seem to claim, when they are discussing internet regulation.
- gfodor 4y ago
  You’re getting hung up on the analogy. Whatever things like Twitter and Facebook are, they seem to be distinctly new phenomena that have a critical role to play in upholding the principles of freedom of speech that underpins things like liberal democracy, given their scale and the network effects of that scale. It’s important to recognize this for what it is and incorporate it into society intentionally to maximize the net benefits to humanity. The current approach where the marketplace of ideas seems to be tightening given the emergent behavior of these companies (and the public pressure to do so) implies to me we need a better regulatory regime or technology stack if we want to ensure liberalism continues to prosper.

MBCook 4y ago

I saw someone point out on Twitter that the way this law is written says nothing about spam. All it says is you can’t interfere with the delivery of email. Which makes sense. One of the complaints out there is companies “help” Democrats by letting their emails into the inbox while Republican emails go into spam. So it’s clear what should happen. Google/etc. should check where people live (address they already know or maybe just where most access is from). In Texas? Enjoy ALL the spam. Not just the spam folder stuff but the stuff they just outright delete because it’s so spammy. Let the poison be part of the cure. Enjoy the deluge.

iamevn 4y ago

I'm not sure I agree with the prior that blog comments, twitter/facebook posts, youtube videos, messages left behind to other players in dark souls, etc are Speech and I'm curious to find any legal opinion about this.

iamevn 4y ago
It seems like it comes down to what constitutes a public forum and it seems odd to me that privately owned spaces can be public forums even if they want to be considered that way. If the costs of running and maintaining a space fall up a private entity I don't understand how they can be compelled to host something they don't want.
SpicyLemonZest 4y ago
Under modern law, basically everything that expresses anything is considered speech under the First Amendment. Just last year (https://en.wikipedia.org/wiki/Mahanoy_Area_School_District_v._B.L https://en.wikipedia.org/wiki/Mahanoy_Area_School_District_v....), some angry Snapchat messages were given First Amendment protection.

tb_technical 4y ago

I'm gonna monologue about an only tangentially related topic. At some point, a corporate service becomes so commonplace - so ubiquitous - that it SHOULD be seen as a common carrier. Is it possible to even survive in the modern world without an email account nowadays? No? Then it should now be seen as a utility. If the best way to find out the service status of your local power utility - or what government services your local municipality offers - is on Twitter, than Twitter becomes more like a public utility to be regulated.

DangitBobby 4y ago
Even so, Twitter, Facebook, Email, and basically anything popular on the internet where people can freely communicate would become totally worthless if these platforms could not perform censorship. Can you imagine every popular twitter thread having 30 advertisements for 15 different male enhancement supplements?
- tb_technical 4y ago
  As far as I'm concerned, the internet is rapidly becoming totally worthless as it is. The same arguments used to justify spam removal are also used to justify removing naughty political speech - in addition I see this as a red herring. Because email, which is a horrific spamfest, is still usable sans censorship.
  - DangitBobby 4y ago
    Some people's political views are indistinguishable from spam.
hackerlight 4y ago
We should stop trying to find analogies to historical precedent. Social media is an entirely new beast of the 21st century without any comparison. A new paradigm and mindset around free speech is needed, because social media and unfettered unmoderated free speech can't simultaneously coexist without collapsing our society.

HotGarbage 4y ago

If you don't want to mess with Texas: https://shitlist.hotgarba.ge/ https://shitlist.hotgarba.ge/

NHQ 4y ago

Everybody knows this is an attempt to deal with platform immunity. Take away the immunity. Make the platforms responsible for what they publish.

DangitBobby 4y ago

Unrelated: Does anyone know of a platform that has court opinions in HTML?

deleted 4y ago
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user3939382 4y ago

hackerlight 4y ago
> I can’t help but suspect the true motivations of anyone who opposes the ruling We don't want society to collapse as unfettered conspiracy theories cause fascists to get elected and 500k deaths due to anti-vax brainwashing. That's actually our true motivation.
- user3939382 4y ago
  Translation: I support these unelected tech oligarchs crushing the free speech of my political enemies. If you don’t support the speech of people you disagree with you don’t support free speech.
  - hackerlight 4y ago
    That's right, I don't support the American sociolegal construct of free speech in the age of social media. No sociolegal construct is sacrosanct. They're all subject to revision if facts of the world change to cause them to have more negative consequences than positive ones. Our ancestors realized that there needed to be some limits on free speech in the age of print, i.e libel law. You now accept these restrictions because you're accustomed to them - don't pretend it's high minded ideals. You have simply mentally compartmentalized libel as that speech which is OK to ban. You are no more a free speech purist than I am. We need to realize that social media has created new speech related societal failure modes that didn't exist last century. In response, we need to update our paradigm and somehow address these failure modes, because the old paradigm no longer works for the new era we live in.
    - user3939382 4y ago
      I mean this with all sincerity and respect -- at least you admit you don't believe in free speech and you're not a hypocrite, which is more than you can say for a lot of those in your school of thought. As for me, I think we have enough limits on speech and going further leads to tyranny, that muzzling those you disagree with is abominable and unenlightened. Stalin and Pol Pot would have also eagerly explained why their measures were really for the good of the public, and why new circumstances required it. Your argument boils down to, free speech of my political enemies is only acceptable when it doesn't have influence and reach.

chris_wot 4y ago

This is going to have to go to the Supreme Court now. What a waste of time.

dijonman2 4y ago

It’s a step in the right direction, but more needs to be done. We need to protect the ability to have honest discussions, even if controversial. Silencing information is draconian.

manuelabeledo 4y ago
> We need to protect the ability to have honest discussions, even if controversial. … Or to yell “fire!” in a packed theatre.
- dijonman2 4y ago
  This has no association with my point.

yalogin 4y ago

This is just another example of highly unqualified political appointees giving back without regard to the constitution. It’s just going to happen more and more.

bitforger 4y ago

Suppose Twitter / FB were forced to comply with this law and remove censorship. Could they do that only for accounts that are verified as being legal US citizens and continue censoring unverified accounts? In that case I wouldn't be opposed to this, as long as it doesn't unleash a huge wave of bots.

pmontra 4y ago

So they don't have the right to moderate (which might be a good thing, see the Beautiful Blue Eyes case) but do they have the duty to do it because of some legislation?

brudgers 4y ago

Fascinating. To me, at least. If the ruling is upheld, the legal precedent of corporate free speech is reversed. If overturned, the legal philosophy of original intent is undermined. Following the benjamins, I expect the latter. To put it another way, because the ruling is against corporate free speech, it is from the left side of current political gravity.

6stringmerc 4y ago

Masnick has some suspect understandings and positions on both law and enforcement - looking at his wildly wrong interpretation of fair use with GoldiBlocks in particular - so please use caution with anything he writes.

stjohnswarts 4y ago

I think companies being allowed to carry whatever content they want is the best compromise. Companies aren't there to ensure your free speech or provide a platform. That has never been a constitutional right. There is nothing keeping the far right or far left from setting up and coming up with AltRightFace or LeftAntiface. This is the judiciary picking and choosing winners and losers that align with their personal philosophy. No one was -ever- guaranteed a platform outside a public debate forum. If you want new laws for that then get Congress to pass it. Judges are always trying to sidestep the will of the people, in particular the current SCOTUS. Maybe a further compromise would be to keep companies like cloudflare, spectrum, digital ocean, or AWS from playing favorites as they are providing the most basic of services (web hosting, web apps, etc) that make this stuff possible. Generally not general public facing. I could see a compromise where they wouldn't be allow to turn off content unless it was breaking the law (threats at individuals, treason, insurrection talk, etc)

mchusma 4y ago

I continue to be confused why social media companies want to censor, and not let users themselves censor content how they want (including with algorithms). This gets around basically all issues for all parties. Basically let me block Nazi content or whatever from my feed, but if someone wants to see it, go ahead. Honestly this would be great, as I could probably block all political posts as well, leading to a better user experience.

anotherevan 4y ago

Them: “You must censor hate speech on the internet!” Also them: “I didn’t mean you should censor my hate speech!”

deleted 4y ago
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